On the Wisdom of Doing Away with Dad: Where Should the Burden of Proof Lie?

Civitas, 1 September 2009

Lesbians are about to be able to name as the second parent on the birth certificate of any child one might have through IVF their female partner rather than its biological father.

Commending this imminent change, Home Office Minister Lord Brett has reportedly said that:

“for the first time, female couples who have a child using fertility treatment [will] have the same rights as their heterosexual counterparts… It is vital that we afford equality wherever we can in society… This is an important step forward in that process.”

Since when is it vital that we afford equality to people wherever we can in society?

We could afford equality to the blind and the sighted by removing the eyes of the latter. We could afford equality to the imprisoned and the free by freeing all convicted prisoners or by incarcerating the innocent in fully automated jails. Neither seems to me a good idea.

These examples show that affording equality to people wherever we can is not always a good idea.

It is impossible, therefore, to decide through mere appeal to the idea of equality alone whether lesbians couples, of whom one has a child via IVF, should enjoy also the same legal entitlements vis-a-vis those children as heterosexual couples should who do.

It might be thought people should enjoy equal treatment before the law and equal life-chances unless there is a compelling reason why they shouldn’t.

That blind people would not benefit, but are also liable to suffer, from blinding the sighted is one good reason, but by no means the only one, why in the name of equality the sighted should not be blinded.

That crime is certain to rise, and serious wrong-doers escape their just deserts, are two good reasons why those who have been jailed for serious offences should not be freed before they have served a good part and possibly all of their sentences.

So, the question is: Is there any good reason why lesbian couples should not have the right to be named as the second parent of children born to their partners through IVF as heterosexual couples have?

One possible reason would be if children were to suffer later in life from having been brought up by any but opposite sexed couples and ideally their biological parents.

Homosexuals and lesbians vociferously deny there to be any evidence that shows children do, and much to show they don’t. But this is an area fraught by special pleading.

It seems fairer to say we simply do not yet know whether they do. We know children growing up in single-parent households tend to suffer as a result of so doing by comparison with those brought up by both biological parents.

As yet the phenomenon is still too young to allow anyone to say with any degree of confidence that children do not tend to suffer any adverse long-term consequences through being brought up by same sex-partners.

What seems strange here is how ready the authorities seem to be to suspend the precautionary principle which they insist on applying in the case of unproven medicines. These cannot be marketed until they have been shown, not only to have no significant adverse consequences, but also positively beneficial ones.

In the case of same sex couples, in being accorded as many legal rights vis-a-vis any children born to one partner through IVF as heterosexual couples enjoy to children of theirs conceived in this way, the possibility that there might be any long-term adverse consequences to children in being brought up by same sex partners has simply been discounted.

One has to wonder whether there has been good reason for so doing.

Where should the burden of proof lie in these cases?

Should it be for those who favour caution here to supply reason for thinking that children brought up by same-sex couples are liable to fare less well than those brought up by heterosexual couples?

Or should it be for those in favour of same-sex couples enjoying the same entitlements as heterosexual couples in respect of children they have by IVF to show children brought up by same-sex couples do not tend to fare any less well than those brought up by opposite-sex couples?

One thing is certain: appeal to equality in the manner of Lord Brett gets nowhere – unless you are willing to disregard the well-being of children in these cases.

Whether it is purely prejudice in me or what, I don’t know, but I cannot help thinking that it does benefit children to be brought up by opposite sex-partners rather than same-sex partners. I cannot help but think this as a result of two other beliefs I have.

The  first is that, ideally, children benefit most from being brought up by their loving biological parents and that adults who wish to bring up children benefit most when it is their own biological children whom they bring up.

My second belief is that children learn best how to form part of a loving heterosexual family unit through having grown up in one,  ideally, that formed by their own biological parents.

For me, if my two beliefs were true, they would together provide sufficient reason why lesbian couples, of whom one has a child via IVF, should not be given equal legal rights in respect of it as heterosexual couples should who have one that way. For,  in my view, the law should favour such domestic arrangement as tend to enable children to fare best in life.

But I cannot say I have hard evidence for either of my two beliefs, any more than, I believe, do those have for theirs who deny either.

In the presence of such uncertainty, should or should not the precautionary principle be exercise? If so, why? If not, why not?

Readers’ thoughts on this subject would be gratefully received.